Defences Flashcards by Tim Knowling

Self defence: prevention of crime (statutory defence)

S3(1) criminal law act 1967

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Self defence: legal test

. Was the force necessary
. Was the force reasonable in the circumstance

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Self defence: the force was necessary as he was going to be attacked

Hussain and another

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Self defence: protect themselves, another person and or property

Common law

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Self defence: if there was an honest mistaken belief of a threat the defence is still available

Williams

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Self defence: if the D makes the mistaken belief because they where voluntarily intoxicated

O’Grady

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Self defence: don’t have to retreat from an attack

Bird

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Self defence: if the D fears and attack they can prepare for an attack

Attorney general reference (No2 of 1983)

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Self defence: if the D uses aggression in order to escalate the situation into a more violent one then the defence is unavailable

Rashford

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Self defence: the force used by the D must be reasonable in the circumstance as the D believes them to be

Palmer

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Self defence: if disproportionate force is used the defence is unavailable

S76(6) criminal justice and immigration act 2008

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Self defence: extend the D appreciated the exact same measure of necessary action

S76(7)(a) criminal justice and immigration act 2008

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Self defence: there is evidence to support the D honest and instinctively believed they took reasonable action

S76(7)(b) criminal justice and immigration act 2008

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Consent: if it is not in the interest of the public to allow people to consent to harm greater than common assault unless it is one of the public policy exceptions

Attorney general reference (No 6 of 1980)

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Consent: harm caused within the rules of a game is lawful

Barnes

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Consent: harm outside the rules of the game is unlawful

Billinghurst

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Consent: deliberately and unnecessarily sets out to injure another person is unlawful

Johnson

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Consent: lawful and reasonable chastisement of children is permitted. But if ABH or greater harm occurred defence is unavailable

S58 children act 2004

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Consent: an adult can refuse / surgical interference

Blaue

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Consent: a child below the age of 16 can consent to treatment or refuse treatment as long as they have ……… competence, they have sufficient intelligence and understanding of there decision

Gillick

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Consent: if a person lacks mental capacity to consent to medical treatment, it can be provided, as long as medical staff are acting in their best interest

F v West Berkshire HA

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Consent: a person consenting to body adornment must have the mental capacity to consent

Burrell & Hammer

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Consent: body adornment between consenting spouses that result in harm is lawful

Wilson

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Consent: if the D has a genuine mistaken belief that the V was consenting to horseplay, this is lawful

Jones

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Consent: a person cannot consent to being killed

Pretty

Consent: a person cannot give consent for someone to inject them with unlawful drugs

Cato

Consent: not all fraudulent conduct will be cancel out the Vs consent

Linekar

Consent: if the D makes out they are someone they are not, the V consent is invalid

Elbekkay

Consent: the V knew the nature and quality of the conduct

Tabbassum

Consent: a person cannot consent out of fear

Olugboja

DBT: governed by

Common law and Hasan

DBT: defence is unavailable for murder (1) and attempted murder (2)

1. Howe 2. Gotts

DBT: the D should be heroic and sacrifice their own life rather than that of another

Lord Hailsham

DBT: the threat must be one of death or serious harm

Hasan, Graham

DBT: as long as one of the threat of either death or serious harm, the cumulative effect of all the threats can be considered

Valderrama-vega

DBT: a threat to rape is sufficient

Ashley

DBT: a threat to damage property is insufficient

Brandford

DBT: a threat to reveal someone’s homosexuality is insufficient

Valderrama-vega

DBT: a threat of psychological injuries is insufficient

Baker and Wilkins

DBT: the threat doesn’t have to be immediate but has to be imminent

Abdul Hussain

DBT: the threat can be toward the D or someone for whom they feel responsible

Wright

DBT: the threat can be toward the D or their family or someone close to them

Hasan

DBT: the test is used in order to determine if the D responded reasonably to the threat

Graham test

DBT: a reasonable and genuine perception of a threat of serious injury

Cairns

DBT: did they respond as a sober person with reasonable firmness sharing the characteristics of the D would have done

Bowen

DBT: characteristics that are permitted

Age, gender, pregnancy

DBT: characteristics that are not permitted

Low IQ, timidity and self induced abuse

DBT: there must be a link between the threat and the type of crime committed

Cole

DBT: if there is a safe avenue of escape the D can avoid the threat, the defence is unavailable

Gill

DBT: if the threat is still operating in the Ds mind at the time the offence is committed, despite to others there appears to be a safe avenue of escape, the defence is still available

Hudson and taylor

DBT: the D knowlingly and voluntarily associated with a criminal gang known for violence

Sharp

DBC: governed by

Graham test confirmed by Martin and updated by Hasan

DBC: is available for all offences except murder and attempted murder

Pommell

DBC: the circumstances the D has found themselves in has caused them to have a reasonable and genuine perception of death or serious harm

Cairns

DBC: the threat doesn’t have to be immediate but has to be at least imminent

Abdul Hussain

DBC: threat can be toward the D or someone who they feel responsible for

Wright

DBC: the threat can be towards the D or their family or someone close to them

Hasan

DBC: the test to determine if the D is responsible to the threat

Graham test confirmed by Martin and updated by Hasan

DBC: a reasonable and genuine perception of a threat of serious physical injury

Cairns

DBC: did they respond as a sober person of reasonable firmness sharing the characteristics of the D would have done

Bowen

DBC: If there is a safe avenue of escape so the D can avoid the threat the defence is unavailable

Gill

DBC: if the threat is still operating in the Ds mind at the time of the offence is committed, despite there being a safe avenue of escape, the defence is available

Hudson and taylor

DBC: if the D knowlingly and voluntarily associates with a criminal gang known for violence, defence is unavailable

Sharp

Insanity: governed by

M’naghten Rules

Insanity: the D must have suffered from a complete loss of reasoning and not confusion or absent mindedness

Clarke

Insanity: the defect of reason may be permanent or temporary

Sullivan

Insanity: the disease of the mind must be cause by an internal factor

Quick

Insanity: it is any condition which impairs the mental faculties of reason, memory and understanding

Sullivan

Insanity: it can be temporary and/or a medical condition that affects the brain

Kemp

Insanity: hyperglycaemic episodes are classed as insanity

Hennessy

Insanity: voluntary intoxication is an external factor

Coley

Insanity: sleep walking is an internal factor

Burgess

Insanity: the D knew the nature and quality of the act

Cordere

Insanity: the D didn’t know the nature and quality of the act

Oye

Insanity: D knew the act was legally wrong

Windle

Automatism: governed by

Common law, bratty define by Lord denning

Automatism: D must have a total destruction of voluntary control, this means they have 100% involuntary

Attorney general reference (no 2 of 1992)

Automatism: actions where completely involuntary

Woolley

Automatism: the D will have to provide evidence that they where in an automatic state at the time of the incident

Hill v Baxter

Automatism: hypoglycaemic episode is an external factor

Quick

Automatism: must be caused by an external factor

Butterworth

Automatism: who provides the rules for self induced automatism

Bailey

Intoxication: if the D is voluntarily intoxicated and cannot form the MR of the Specific intent offence, it will be a full defence. However not for alternative basic intent offence, recklessly intoxicated

Sheehan and Moore

Intoxication: if the D forms the MR of a specific intent offence the defence is unavailable

Coley

Intoxication: Drunken intent is still intent

Gallagher

Intoxication: basic intent offence are governed by

Majewski

Intoxication: if the D commits a basic intent offence whilst voluntarily intoxicated, they would be guilty of this offence, as their decision to be intoxicated was reckless

Majewski

Intoxication: if the jury finds that the D would have realised the risk if sober then the defence is available

Richardson and Irwin

Intoxication: involuntarily intoxication is a full defence to both SIO and BIO (1) unless the D forms the MR of the offence (2)

1. Hardie 2. Kingston

Intoxication: the rules for intoxicated mistake is governed by

Lipman

Automatism: demonstrated some control over there actions then the defence is unavailable

Brooke v Perkins